Royal Sundaram General Insurance ... vs Achamma
2021 Latest Caselaw 13872 Ker

MACA NO. 2508 of 2019
                                       1

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                     THE HONOURABLE MR.JUSTICE C.S.DIAS

           TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943

                            MACA NO. 2508 OF 2019

  AGAINST THE ORDER/JUDGMENT IN OPMV 317/2012 OF II ADDITIONAL MOTOR

                ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA, IDUKKI

APPELLANT/S:

              ROYAL SUNDARAM GENERAL INSURANCE COMPANY LIMITED
              CHENNAI NOW REPRESENTED BY THEIR ZONAL HEAD, SUBRAMANIAM
              BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI-600 002

              BY ADVS.
              MATHEWS JACOB (SR.)
              SRI.P.JACOB MATHEW

RESPONDENT/S:

     1        ACHAMMA,W/O. JOSEPH, KUZHIKATTUKUNNEL HOUSE, MARIYAPURAM
              KARA, THANKAMANI VILLAGE ,PIN-685 602

     2        SHAIJU,S/O. JOSEPH, KUZHIKATTUKUNNEL HOUSE, MARIYAPURAM
              KARA, THANKAMANI VILLAGE ,PIN-685 602

     3        SHEEBA,D/O. JOSEPH, KUZHIKATTUKUNNEL HOUSE, MARIYAPURAM
              KARA, THANKAMANI VILLAGE ,PIN-685 602

     4        K.M.RAJESH,KAKKATTU HOUSE, NERYAMANGALAM P.O.,
              KOTHAMANGLAM,PIN-686 693

     5        VIJU,7/27,MOLEKKUDIYIL HOUSE, INCHATHOTTY P.O.,
              KOTHAMANGLAM,PIN-686 691

              BY ADVS.
              SRI.S.SACHITHANANDA PAI, SRI.GEORGE
              MATHEW,SRI.M.D.SASIKUMARAN, SHRI.PRAVEEN S.
              SHRI.SUNIL KUMAR A.G, SRI.DIPU JAMES
              SHRI.MATHEW K.T., SHRI.GEORGE K.V., SMT.ELSA DENNY PINDIS




         THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION

ON 01.07.2021, THE COURT ON 6.7.2021 DELIVERED THE FOLLOWING:
 MACA NO. 2508 of 2019
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                           C.S.DIAS, J.
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               M.A.C.A.No.2508 of 2019
            ----------------------------------------
          Dated this the 6th day of July, 2021

                         JUDGMENT

The appellant - Insurance Company was the third

respondent in OP(MV) No.317/2012 on the file of the

Additional Motor Accidents Claims Tribunal-II,

Thodupuzha. The respondents 1 to 3 in the appeal were

the petitioners 1 to 3 and respondents 4 and 5 were the

respondents 1 and 2 before the Tribunal. The parties

are, for the sake of convenience, referred to as per

their status in the claim petition.

2. The petitioners had filed the claim petition

under section 166 of the Motor Vehicles Act, 1988

claiming compensation on account of the death of one

Joseph, who was hit by a tipper lorry bearing

registration No.KL-5/H-6478 on 23.4.2012 and MACA NO. 2508 of 2019

succumbed to the injuries. The first petitioner is the

wife and petitioners 2 and 3 are his children. The

second respondent was the owner and the third

respondent was the insurer of the lorry. Hence, the

petitioners claimed compensation from the

respondents.

3. The respondents 1 and 2 contended that

although the Police had filed a charge-sheet against the

first respondent, he was later acquitted by the

Jurisdictional Court on finding that he was not

negligent in causing the accident.

4. The third respondent - Insurance Company

filed a written-statement, inter-alia, contending that

the petitioners had abandoned the deceased 10 years

prior to the accident. Therefore, they have no right to

claim compensation. Nevertheless, the third

respondent admitted that the vehicle had a valid

insurance coverage. It was also contended that the MACA NO. 2508 of 2019

deceased was an unauthorised passenger in the

vehicle.

5. The Tribunal allowed the claim petition by

holding that the respondents 1 and 2 were liable to pay

compensation.

6. The respondents 1 and 2 challenged the award

before this Court. This Court by judgment dated

7.9.2018 in MACA 3448/2015, allowed the appeal and

set aside the award by remitting the matter back to

the Tribunal for fresh consideration, principally to give

the respondents 1 and 2 an opportunity to contest the

proceedings on merits.

7. In the proceedings prior to remand, a witness

was examined on the side of the petitioners and Exts

A1 to A6 were marked. Similarly, Exts B1 and B2 were

marked on the side of the third respondent. After

remand, PW2 and RWs 1 and 2 were examined and Ext

B3 was marked.

MACA NO. 2508 of 2019

8. The Tribunal after re-appreciating the

additional materials also, arrived at a conclusion that

the deceased was not a passenger in the vehicle, but

was a third party and, therefore, the third respondent

was liable to indemnify the second respondent of his

liability, which was fixed at Rs.6,43,500/- along with

interest and costs.

9. Aggrieved by the award, the third respondent

is now before this Court in the second round of

litigation.

10. The principal ground of challenge in the

memorandum of appeal is that the Tribunal has

erroneously arrived at a contradictory finding by

holding that the deceased was a third party and not a

gratuitous passenger and also that the notional income

of the deceased fixed was on the higher side.

11. Heard Sri.Mathews Jacob, the learned Senior

Counsel appearing for the appellant, Sri.Sachithananda MACA NO. 2508 of 2019

Pai and Sri.George Mathew, the learned counsel

appearing for the respondents.

12. On a perusal of the materials, it is seen that

PW2 had categorically deposed that the accident

occurred while the deceased was attempting to get into

the lorry while the vehicle was negotiating a 'U' turn,

but he fell down on the road and the driver did not see

him and the rear tyre ran over him. In fact, the

testimony of PW2 is contradictory to the testimony of

PW1, who had stated that the deceased was standing

on the road. Similarly, RW1 deposed that as the vehicle

was with full load, the first respondent did not see the

deceased standing on the left side of the road. RW2,

an eye-witness, testified that the lorry hit the deceased

while he was talking to an auto rickshaw driver.

13. The Tribunal on an appreciation of the oral

testimonies of PW2, RWs1 and 2, came to the

conclusion that the accident occurred solely on account MACA NO. 2508 of 2019

of the negligence of the first respondent, who did not

see the deceased standing on the road and the

deceased was not a passenger in the vehicle. The

testimonies of the above witnesses tallies and

corroborates with the investigation conducted by the

Police. Accordingly, it was held that the Insurance

Company is liable to indemnify the liability of the

owner of the vehicle.

14. The elaborate threadbare appreciation of

facts by the Tribunal, especially after the remand,

cannot be permitted to be re-agitated by the Insurance

Company before this Court in the second round of

litigation. Thus, I hold that there is no error or

illegality in the finding arrived at by the Tribunal on the

said point.

15. Now coming to the point regarding the

income of the deceased.

16. The deceased was stated to be a casual MACA NO. 2508 of 2019

labourer. The Tribunal fixed his notional monthly

income at Rs.4,500/-. In light of the ratio in

Ramachandrappa vs. Manager, Royal Sundaram

Alliance Insurance Company Ltd [ (2011) 13 SCC

236], I do not find that the notional income fixed by the

Tribunal is on the higher side. Likewise, the

compensation awarded under the heads loss of

dependency, compensation under the conventional

heads and compensation for pecuniary damages are all

in line with the law laid down in Sarla Verma v. Delhi

Transport Corporation [2010 (2) KLT 802 (SC)] -

[(2009) 6 SCC 121] and a host of subsequent

decisions laid down by the Hon'ble Supreme Court.

17. The Honourable Supreme Court in New India

Assurance Co. Ltd. vs. Kiran Sing & Ors. : 2004

(AIR) SCW 4212 has deprecated the practice of

insurance companies contesting genuine claims in a

routine manner and dragging the parties to court and MACA NO. 2508 of 2019

wasting enormous time and money. It is also observed

that if such instances are brought to the notice of the

court, the court would be obliged to dismiss such

appeals with heavy cost apart from deprecating such

parties.

18. It is to be borne in mind that the accident

occurred on 23.4.2012. The Insurance Company is

before this Court in the second round of litigation

aggrieved by the findings of negligence and the

notional income fixed by the Tribunal. On an

appreciation of the pleadings and materials before me,

I do not find any error in the compensation awarded by

the Tribunal. It is trite that the Tribunals are permitted

to do some guess work and also exercise its discretion

to fix the reasonable and just compensation, for which

there cannot be any strait jacket formula based on

arithmetical precision. I find that the Tribunal has

judicially exercised its powers based on the provisions MACA NO. 2508 of 2019

in the Motor Vehicles Act, 1988 and the precedents of

the Honourable Supreme Court and this Court while

fixing the just compensation as per the impugned

award. I do not find any justifiable ground in the

memorandum of appeal warranting admission of the

appeal, which will only be a wastage of judicial time

and a harassment to the respondents 1 to 3/claimants.

Following the ratio in Kiran Sing (supra), I hold that

the appeal is devoid of any merit and does not warrant

admission, therefore, is only liable to be dismissed at

the threshold, which I do.

sd/-

C.S.DIAS JUDGE sks/2.7.2021